the truth about the Parliamentary and Health Service Ombudsman

Just how independent is PHSO?

If you follow the money and consider that anyone in the pay of government is not independent of government then PHSO is not independent at all. The use of the term ‘independent’ is, however, a most useful one and we can see it in action in these two recent examples.

The first is part of a letter from Rob Behrens, the Ombudsman to a complainant who recently attended the PHSO Open Meeting in May 2018. He is inviting her to take part in an ‘independent’ review into the way PHSO uses clinical advice. For context, PHSO does not reveal the identity of the clinical advisor and a single anonymous opinion can override other medical expertise provided by the complainant, legal advice and hard evidence in the form of medical records and reports.

However, to signify my respect for your concerns, I need to tell you that I am in the process of commissioning an independent review into the way in which PHSO commissions and uses clinical advice. It is clear that clinical advice was particularly important in the investigation relating to your father’s death, and therefore I am writing to invite you to make a submission to the independent review which is being chaired by Sir Alex Allen. Sir Alex is an independent Non-Executive member of the PHSO Board, and he will be receiving advice from a nationally known and respected clinician, whose name will be disclosed when we publish the Terms of Reference.

The chair of the review will play a pivotal role in shaping the scope, deciding which evidence to include and which to discard and the final recommendations. So how independent is Sir Alex Allen? He has previously been Chairman of the Joint Intelligence Committee, an expert in keeping secrets and is currently, according to the PHSO Conflict of Interests Register, the Prime Minister’s Independent Advisor on Ministerial Interests. No doubt a paid role but it would seem this one man can serve two governors for he is also on the Non – Exec board for PHSO which is an organisation totally independent of ministerial involvement. Just how does he keep the two interests separate?

In 2015 he was clearly working for the government in his failed attempt at the High Court to prevent disclosure from ministerial diaries in accordance with FOI law.

The rulings are also embarrassing for the Government because the High Court concluded that evidence by the Prime Minister’s adviser on ministerial standards was “way below” what the public were “entitled to expect” of a senior civil servant. Mr Justice Charles said the testimony of Sir Alex Allan, a former chairman of the Joint Intelligence Committee, had “lacked objectivity” and should be “roundly rejected”.

The judge also accused Sir Alex of demonstrating a “determination to avoid directly conceding the indefensibility of things he had said” and a “keenness to repeat generalised lines… rather than give direct answers to questions”. He said the evidence was a “reminder of the secretive culture of the public service” that the Freedom of Information Act was meant “to change for good”.

So a defender of ‘the secretive culture of public service’ is put in charge of a review regarding the secretive culture of PHSO clinical advisors. Not a good omen.

The Ombudsman is appointed by the Queen under the recommendation of parliament and the funding for PHSO comes directly from the treasury. It is for all intents and purposes a government paid organisation which holds government departments to account. There is an inherent bias in this arrangement compounded by the fact that parliament sets the legislation under which the Ombudsman operates, conveniently tying his hands by failing to provide ‘own initiative investigative powers’ and ‘legal powers of compliance’. The strings are firmly held by the Cabinet Office – the centre of government, who confer regularly with the Ombudsman in meetings which are not minuted or recorded in the public domain. Yet, when it suits, which is most of the time, the Ombudsman is totally independent of government in a ‘nothing to do with us’ shrug of the shoulders manner. Take this recent example from Hansard 14th June 2018.

4,000 WASPI complaints are on their way to PHSO having passed unsuccessfully through the complaints process at DWP and the Independent Case Examiner (ICE). This massive increase in complaints is due to a government decision to delay pension payments to 1950’s WASPI women and failing to give sufficient warning to allow them to make other arrangements. Many women in their early sixties are destitute as they wait a further 6 years for their expected pensions. PHSO have had a 24% cut in funding, another government decision to save money and a relocation to Manchester has seen a loss of experienced caseworkers and senior management. All the work of the Whitehall boffins, yet when PHSO have to pick up the pieces of these decisions and will quite clearly fail to do so to the satisfaction of many complainants, they are ‘totally independent of government’. How convenient. A show of clean hands all round then.